United States v. Salas-Lopez

168 F. App'x 611

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT February 23, 2006

Charles R. Fulbruge III Clerk No. 04-41425 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

GERARDO SALAS-LOPEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. 7:04-CR-580-ALL --------------------

Before GARZA, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Gerardo Salas-Lopez (Salas) appeals his sentence for being

present in the United States after having been deported. Salas

argues for the first time on appeal that the district court erred

in imposing a sentence under a mandatory guidelines regime, in

violation of United States v. Booker, 543 U.S. 220 (2005). He

also argues that the “felony” and “aggravated felony” provisions

of 8 U.S.C. § 1326(b) are unconstitutional.

We review Salas’s Booker-based challenge for plain error.

See United States v. Valenzuela-Quevedo, 407 F.3d 728, 732 (5th.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 04-41425 -2-

Cir.), cert. denied, 126 S. Ct. 267 (2005). Salas has failed to

establish that the error affected his substantial rights.

See United States v. Martinez-Lugo, 411 F.3d 597, 600-01 (5th

Cir.), cert. denied, 126 S. Ct. 464 (2005); United States v.

Bringier, 405 F.3d 310, 317 n.4 (5th Cir.), cert. denied, 126

S. Ct. 264 (2005). Therefore, he cannot demonstrate plain error.

Salas’s constitutional challenge to 8 U.S.C. § 1326 is

foreclosed by Almendarez-Torres v. United States, 523 U.S. 224,

235 (1998). Although Salas contends that Almendarez-Torres was

incorrectly decided and that a majority of the Supreme Court

would overrule Almendarez-Torres in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000), we have repeatedly rejected such

arguments on the basis that Almendarez-Torres remains binding.

See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir.),

cert. denied, 126 S. Ct. 298 (2005). Salas properly concedes

that his argument is foreclosed in light of Almendarez-Torres and

circuit precedent, but he raises it here to preserve it for

further review.

The judgment of the district court is thus AFFIRMED.